As the journey through the condition of dementia progresses, capacity to take decisions will often diminish. Decisions involving specialist medical treatment and finances will then need to fall to a friend or relative. Gaining the legal power to take decisions is explained through the six categories below. We also recommend that you take professional legal advice, which can be gained from local Worthing solicitor Bennett Griffin.
Symptoms of dementia will increase over time and it is important to get an early diagnosis and to plan for the future as early as possible.
Plans should include ensuring that a persons wishes are upheld, should they be unable to make decisions for themselves – this is termed: lacking or impaired capacity.
The Mental Capacity Act is designed to protect people who lack the mental capacity to make decisions for themselves.
Under this Act, a person is presumed to have capacity “unless all practical steps to help him (or her) to make a decision have been taken without success”.
Find out more about the Mental Capacity Act.
When a person gives consent, it means that they must give express permission before any medical treatment can be undertaken on them.
Consent is needed for all treatments, from a simple blood test to an organ donation.
Treatment can go ahead without your permission a person cannot make a decision on their own behalf and the doctors responsible for their care believe that treatment is in their best interests.
Find out more about consent issues.
There may come a time when symptoms mean that a person is no longer able to give consent. In this situation the power to make decisions can be given to a relative. This is known as Power of Attorney.
There are three different types of power of attorney:
- Lasting Power of Attorney (LPA) for matters relating to property and financial affairs
- LPA for matters relating to the person’s welfare (including their health)
- Enduring Power of Attorney (EPA). EPAs made before October 1 2007 are still valid and can only be registered if the person is losing, or has lost, their mental capacity, and must be registered by the attorney
The LPA has to be made in a fixed legal way and is not legally recognised until it is registered with the Office of the Public Guardian.
The person making a power of attorney for property and affairs can register the LPA while they are able to make decisions for themselves.
A personal welfare LPA may only be registered when a person has lost capacity. Separate powers of attorney can be made for either LPA, or both LPAs can be appointed to the same attorney.
Read more about dementia and your money.
When a person is first diagnosed with dementia, it is important to consider drawing up an Advance Decision.
An Advance Decision care plan makes treatment preferences known in the event that capacity to do this is lost in the future.
Subjects covered by an Advance Decision can include:
- What treatment a person would consider having, and in what circumstances
- What types of treatment a person would never wish to have, no matter the circumstances
- What type of end-of-life care a person would wish to have – for example, to be resuscitated by artificial means, such as having a breathing tube inserted to the neck after lung failure
- Organ donation following death
No illegal options are permitted within advance decision, such as assisted suicide. Care teams are able to provide more information and advice about advance decisions.
A will enables people to decide what happens to their assets (money, property and possessions) after death. It’s the best way of ensuring that wishes are carried out following death.
When a person dies without making a will, the government will decide what happens to their assets. Wills can be self-written, but it’s a good idea to get legal advice and they do need to be formally witnessed and signed to make them legally valid.
GOV.UK recommends that when writing your will, it should include:
- Who you want to benefit from your will
- Who should look after any children aged under 18
- Who is going to sort out your estate and carry out your wishes after your death (your executor)
- What happens if the people you want to benefit die before you
A will should be safely stored and an executor should be told where it can be found.
For more information, read GOV.UK advice on writing your will or go to Citizens Advice. You may also want to check out the Money Advice Service information on making and changing a will and planning your estate.
There may come a time when a person with dementia cannot make significant decisions for themselves. This is more likely during the moderate to advanced stages of dementia. In this situation, someone else may need to make decisions on their behalf.
Some people with dementia will already have plans in place for a time in the future when they cannot make their own decisions. They may have put a Lasting Power of Attorney or Enduring Power of Attorney in place. However, if the person with dementia has not previously done this, and a carer feels that they need to make decisions on their behalf, the carer will need to apply to the Court of Protection to become their deputy.
What is a deputy?
A deputy is a person appointed by the Court of Protection to manage the affairs of someone who lacks the mental capacity to manage their own affairs. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances could be a professional such as a solicitor or accountant or another professional appointed by the court. Professional deputies will charge for their time, and this is paid for by the person with dementia (or their estate).
To become a deputy you must be at least 18 years of age and willing to be a deputy. A deputy must consent to their appointment.
Paid care workers should not agree to act as a deputy because of the possible conflict of interest. In exceptional circumstances (for example, if the care worker is the only close relative of the person who lacks capacity), this may be unavoidable.
There are two different types of deputyship: property and affairs, and personal welfare.
Types of deputyship
Property and Affairs Deputyship
A Property and Affairs Deputyship is the most common form of deputyship. Someone must apply to become a deputy if they feel they need to manage someone’s financial affairs. This usually only happens if the person who lacks capacity to make decisions about property and affairs has not made a Lasting Power of Attorney or Enduring Power of Attorney.
Usually, the court will not appoint a deputy if the person has already appointed an attorney to manage their financial affairs. Similarly, when a person has no property or savings and their only income is social security benefits, there will usually be no need for a deputy to be appointed. This is because the benefits can be managed by an appointee, appointed by the Department for Work and Pensions.
If you make an application to become a property and affairs deputy, you will need to sign a declaration. The declaration will outline your circumstances and include details of the tasks and duties you as a deputy must carry out. You must be able to assure the court that you have the skills, knowledge and commitment to carry them out. You must also assure them that there is nothing that might make your appointment inappropriate, e.g. if you have severe financial and/or health problems yourself, or are bankrupt.
Personal Welfare Deputyship
A Personal Welfare Deputyship is rare. If a person lacks capacity to make decisions about their care and treatment and has not appointed an attorney, someone must apply to become a deputy if they feel they need to manage that person’s personal affairs. They are only appointed in the more extreme circumstances where no resolution can be reached in the best interests of the person. The Court of Protection does not usually appoint deputies to make continuing decisions about someone’s health and welfare unless regular treatment or supervision is needed, for example with a younger person.
These decisions can usually be made in the person’s best interests by those providing care and/or treatment. If there is a disagreement as to what is in the person’s best interests, or the decision relates to specified serious medical treatment, it may be necessary to ask the court to intervene.